People v. Klinger, 129 A.D.3d 1115 (N.Y. App. Div. 3d Dep't 2015). · Go Syfert
People v. Klinger, 129 A.D.3d 1115 (N.Y. App. Div. 3d Dep't 2015). Cases Citing This Book View Copy Cite
38 citation events (38 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2015 → 2026 · click a year to view as-of
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Cited for
At page 1116 Voluntariness of plea surviving appeal waiver10 citing cases9 listed here
  • People v. Lilliard, 206 A.D.3d 1241 (N.Y. App. Div. 3d Dep't 2022).published
    Defendant orally raised that argument before County Court, but did not include it in the later [*3]written motion to withdraw his plea that the court directed him to file, leaving it far from clear that the issue is preserved for our revie…
  • People v. Holmes, 2018 NY Slip Op 4039 (N.Y. App. Div. 3d Dep't 2018).published
    With no affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he entered his guilty plea, the plea was invalid and must be vacated ( see People v Cotto , 156 AD3d at 1064 ; People…
  • People v. Cotto, 156 A.D.3d 1063 (N.Y. App. Div. 3d Dep't 2017).published
    Although this argument was not preserved for our review through an appropriate postallocution motion, we exercise our interest of justice jurisdiction to take corrective action and reverse the judgment (see CPL 470.15 [3] [c]; People v Kli…
  • People v. Herbert, 147 A.D.3d 1208 (N.Y. App. Div. 3d Dep't 2017).published
    Although defendant’s challenge to the plea was not preserved through an appropriate postallocution motion (see People v Conceicao, 26 NY3d 375, 382 [2015]; People v Sommers, 140 AD3d 1537, 1538 [2016], lv denied 28 NY3d 974 [2016]), we exe…
  • People v. Bond, 146 A.D.3d 1155 (N.Y. App. Div. 3d Dep't 2017).published
    Although this claim survives defendant’s valid appeal waiver (see People v Giammichele, 144 AD3d 1320, 1320 [2016]; People v Klinger, 129 AD3d 1115, 1116 [2015]), it is unpreserved for our review as there is no indication in the record tha…
  • People v. Giammichele, 144 A.D.3d 1320 (N.Y. App. Div. 3d Dep't 2016).published
    While this challenge survives defendant’s valid appeal waiver (see People v Klinger, 129 AD3d 1115, 1116 [2015]; People v Miner, 120 AD3d 1449, 1449 [2014]), it was not preserved for our review by an appropriate postallocution motion in th…
  • People v. Lowe, 133 A.D.3d 1099 (N.Y. App. Div. 3d Dep't 2015).published 4 cites
    Initially, although defendant’s challenge to the voluntariness of his plea survives even a valid appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Klinger, 129 AD3d 1115, 1116 [2015]), we note that County Court failed to…
  • People v. Mones, 130 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2015).published 6 cites
    In any event, we exercise this Court’s interest of justice jurisdiction to reverse the judgment (see People v Klinger, 129 AD3d 1115, 1116 [2015]; People v Vences, 125 AD3d at 1051 n 1).
  • People v. Proper, 133 A.D.3d 918 (N.Y. App. Div. 3d Dep't 2015).published
    While “there must be an affirmative showing on the record that the defendant waived his constitutional rights,” the court was not required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit . . . d…
At page 1117 Determining waiver of constitutional rights in guilty pleas4 citing casesmandatory catechism of pleading defendants” (People v Alexander, 19 NY3d 203, 219 [2012] [internal quotation marks and citation omitted]). There must, however,…opening of page *1117 (no citing court says what it cites this page for)
  • People v. Simpson, 196 A.D.3d 996 (N.Y. App. Div. 3d Dep't 2021).published
    Mindful that County Court was not required "to specifically enumerate all the rights to which . . . defendant was entitled" ( People v Tyrell , 22 NY3d at 365 [internal quotation marks and citation omitted]), as defendant notes, the court…
  • People v. Glover, 2019 NY Slip Op 5587 (N.Y. App. Div. 3d Dep't 2019).published 2 cites
    As this record contains no such showing, the guilty plea is invalid ( see People v Simon , 166 AD3d 1075 , 1077 [2018]; People v Aubain , 152 AD3d 868, 870 [2017]; People v Klinger , 129 AD3d 1115, 1117 [2015]).
  • People v. Glover, 2019 NY Slip Op 325 (N.Y. App. Div. 3d Dep't 2019).published
    There can be no dispute that the woefully inadequate plea colloquy failed to affirmatively establish that [*3]defendant understood and voluntarily waived her constitutional rights when pleading guilty and that, given this significant defic…
  • People v. Demkovich, 2019 NY Slip Op 326 (N.Y. App. Div. 3d Dep't 2019).published
    In the absence of an affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he pleaded guilty, the plea is invalid and must be vacated ( see People v Holmes , 162 AD3d at 1118; Peo…
At page 1115 Devine, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 22, 2014, convicting defendant upon his plea of guilty of…1 citing caseopening of page *1115 (no citing court says what it cites this page for)
  • People v. Brewington, 2018 NY Slip Op 4035 (N.Y. App. Div. 3d Dep't 2018).published 2 cites
    Supreme Court further agreed to, and did, make the sentence run concurrently to the aggregate prison term of 16½ years to life imposed in Albany County (129 AD3d at 1115; People v Brewington , 127 AD3d at 1248 ).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Harold Klinger
Appellate Division of the Supreme Court of the State of New York.
Jun 4, 2015.
Published opinion
129 A.D.3d 1115
Clark, Devine, Lynch, McCarthy.
Cited by 16 opinions  |  Published
Devine, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered April 22, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree and waived his right to appeal. The plea agreement contemplated that defendant would be sentenced to a split sentence of six months in jail and five years of probation, with three months of additional jail time to be imposed upon his guilty plea to a separate charge of driving while intoxicated. Defendant thereafter moved to withdraw his guilty plea. County Court denied the motion, finding that defendant understood the rights that he was giving up by pleading guilty and had voluntarily elected to do so. County Court imposed the agreed-upon sentence, and defendant now appeals.

Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” (People v Tyrell, 22 NY3d 359, 365 [2013], citing Boykin v Alabama, 395 US 238, 243 [1969]; see People v Vences, 125 AD3d 1050, 1051 [2015]). This argument is unpreserved given defendant’s failure to advance it in his motion to withdraw his plea (see People v Devault, 124 AD3d 1140, 1141 [2015], lv denied 25 NY3d 989 [2015]; People v Escalante, 16 AD3d 984, 984-985 [2005], lv denied 5 NY3d 788 [2005]). While it is somewhat unclear as to the precise characterization of this type of error (see People v Tyrell, 22 NY3d at 364), it is undoubtedly one serious enough to warrant reversal in the interest of justice (see People v Vences, 125 AD3d at 1051 n; but see People v Jackson, 123 AD3d 634, 634-635 [2014]). Inasmuch as this argument further relates to the question of whether defendant knowingly, intelligently and voluntarily elected to give up his rights and plead guilty (see People v Tyrell, 22 NY3d at 365-366; People v Fiumefreddo, 82 NY2d 536, 543-544 [1993]), it survives even a valid appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Miner, 120 AD3d 1449, 1449 [2014]).

Turning to the merits, a trial court is neither required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit. . . detailed waivers before accepting [a] guilty plea” (People v Tyrell, 22 NY3d at 365 [internal quotation marks and citation omitted]), nor engage in “a uniform[*1117] mandatory catechism of pleading defendants” (People v Alexander, 19 NY3d 203, 219 [2012] [internal quotation marks and citation omitted]). There must, however, “be ‘an affirmative showing on the record’ that the defendant waived his [or her] constitutional rights” (People v Tyrell, 22 NY3d at 365, quoting People v Fiumefreddo, 82 NY2d at 543; see People v Moore, 24 NY3d 1030, 1031-1032 [2014]). County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had “any questions.” County Court further failed to establish that “defendant consulted with his attorney about the constitutional consequences of a guilty plea,” instead making a vague inquiry into whether defendant had spoken to defense counsel regarding “the plea bargain” and “the case” (People v Tyrell, 22 NY3d at 365; compare People v Ocasio-Rosario, 120 AD3d 1463, 1464 [2014]). Inasmuch as the record does not demonstrate defendant’s understanding or waiver of his constitutional rights, we reverse the judgment of conviction, thereby vacating the guilty plea, and remit so that County Court can proceed with the requested pretrial hearings.

McCarthy, J.P., Lynch and Clark, JJ., concur.

Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this Court’s decision.